The decision comes during the defence of four men accused of ferrying dozens of Tamil migrants to B.C.’s west coast

The MV Sun Sea is escorted past Fisgard Lighthouse and into CFB Esquimalt in Colwood, B.C., on Aug. 13, 2010.Canada's human smuggling law has been struck down by the British Columbia Supreme Court, leaving two high-profile prosecutions in limbo with the suggestion the federal government should go back to the drawing board. THE CANADIAN PRESS/Jonathan Hayward

Canada’s human-smuggling law is “unnecessarily broad” and should be returned to Parliament, a B.C. judge has ruled, throwing into question the trials of two groups accused of bringing hundreds of Tamil migrants to the West Coast in 2009 and 2010.

In striking down section 117 of the Immigration and Refugee Protection Act, B.C. Supreme Court Judge Arne Silverman was careful to say the ruling was not meant to attack the federal government’s “legitimate goal” of targeting the problem of human smuggling. But the way the law is written has the potential to criminalize not just individuals who seek to exploit migrants but well-meaning family members and humanitarian workers, Silverman said.

Federal prosecutors are reviewing the ruling and will advise the court of its plans in a week, Sujata Raisinghani, a spokeswoman for the Public Prosecution Service of Canada, said Monday.

A spokeswoman for Public Safety Minister Vic Toews said the government is also reviewing the decision.

The judge’s ruling comes as jury selection was to begin this week in the case of four men accused of smuggling 76 Sri Lankan Tamils to Canada aboard the vessel MV Ocean Lady in the fall of 2009. That process has now been cancelled and defendants Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah — all living in Ontario — have been told they do not need to appear in Vancouver for now.

A second trial for six men accused of smuggling 492 Tamil migrants aboard the MV Sun Sea in the summer of 2010 was set to follow.

Vancouver lawyer Phil Rankin, who represents one of the accused in the Ocean Lady case, said Monday he expects the Crown to stay the charges and appeal the ruling.

As written, the law states “no person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document.”

Someone convicted of smuggling 10 or more people faces a maximum penalty of life imprisonment and a $1-million fine.

Crown prosecutors had said the law was consistent with Canada’s goals to fight human smuggling and that flexibility was needed to assess each case. Plus, most other countries have taken the same broad approach.

But defence lawyers argued the law cast too wide a net and could ensnare legitimate humanitarian aid workers or family members who help refugees escape persecution and violence.

The vast majority of refugees who come to Canada have been helped by someone along the way, Rankin said.

“Almost all come without documents, they almost all come without the proper paperwork and they’re almost all helped by somebody (who) could theoretically be guilty of smuggling them. Only difference being the attorney-general has to consent to the prosecution and so far they’ve been consenting only in the cases where the boats are involved,” he said.

“Abetting is just encouraging. So anybody that encourages someone to get to Canada is guilty of smuggling.”

The judge agreed, declaring the section of the act to be “unnecessarily broad in that it captures a broader range of conduct, and persons, than is necessary to achieve the government’s objective, and thereby infringes Sec. 7 of the Charter,” Silverman said.

The judge noted that the definition of human smuggling in international law includes mention of some kind of financial motive. But it is not up to the court to decide how to rewrite the law. “This is the job of Parliament.”

Refugee advocates years ago called on the federal government to narrow its definition of human smuggling after an American humanitarian worker, Janet Hinshaw-Thomas, was charged after accompanying 12 refugee-seeking Haitians to the Quebec border in September 2007, Janet Dench, executive director of the Canadian Council for Refugees, said Monday.

The charges against her were dropped following a public outcry, which included a letter from three former attorneys general and three former ministers of immigration who wrote that there was a “crucial distinction to be made between the criminal organizations that derive enormous profits from smuggling human beings across borders illegally, and the numerous refugee assistance organizations and dedicated individuals who assist those fleeing persecution and torture.”

As of Monday, 15 of the Ocean Lady migrants had been accepted as refugees, 15 had been rejected and one claim had been withdrawn. Meanwhile, 50 of the Sun Sea migrants had been accepted as refugees, 63 had been rejected, and 23 claims had been withdrawn.

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The MV Sun Sea is escorted past Fisgard Lighthouse and into CFB Esquimalt in Colwood, B.C., on Aug. 13, 2010.Canada's human smuggling law has been struck down by the British Columbia Supreme Court, leaving two high-profile prosecutions in limbo with the suggestion the federal government should go back to the drawing board. THE CANADIAN PRESS/Jonathan Hayward

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